TITLE attorney-general

Opinion No. GA-0290

The Honorable Eddie Lucio Jr.

Chair, Senate Committee on International Relations and Trade

Sam Houston Building, Room 475

Post Office Box 12068

Austin, Texas 78711

Re: Whether the Texas Commission on Environmental Quality is authorized to raise the environmental cleanup level at a specific site, and if so, what procedures must it follow (RQ-0245-GA)

S U M M A R Y

As an administrative agency, the Texas Commission on Environmental Quality ("TCEQ") is bound by its own rules. Where a validly adopted rule, here the Texas Risk Reduction Program ("TRRP") rule, establishes the cleanup standard for remediation activity at all sites in the state, TCEQ's application of a different standard to the ASARCO/El Paso Metals Site without changing the rule would be arbitrary and capricious.

TCEQ is authorized under its enabling legislation to amend the TRRP rule so long as it follows the rulemaking procedures of the Texas Administrative Procedure Act.

As a Removal Action under the federal Comprehensive Environmental Response Compensation and Liability Act, or CERCLA, the current United States Environmental Protection Agency ("EPA") cleanup at the Site is required to meet the lead cleanup standard in title 30 Texas Administrative Code section 350.76(c)(1) to the extent it is practicable to do so given the exigencies of the situation. If EPA determines that the action will be a Remedial Action, or final cleanup, then Rule 350.76(c)(1) sets the applicable cleanup standard. In either case, if EPA determines that Rule 350.76(c)(1) is not applicable to the Site as an applicable or relevant and appropriate requirement, or ARAR, that determination would not require a change in the TRRP rule.

Opinion No. GA-0291

The Honorable Ray Allen

Chair, Committee on Corrections

Texas House of Representatives

Post Office Box 2910

Austin, Texas 78768-2910

Re: Whether, given that Senate Bill 319, Act of May 31, 2003, 78th Leg., R.S., ch. 822, 2003 Tex. Gen. Laws 2607, defines the word "individual" for certain purposes to include "an unborn child," a physician must report a pregnant patient's use of illegal controlled substances as child abuse or as the delivery of controlled substances to a child (RQ-0250-GA)

S U M M A R Y

The Controlled Substances Act, Health and Safety Code chapter 481, does not impose a duty on a physician to report to local prosecutors or to the Department of Family and Protective Services a pregnant patient who is using or has used illegal drugs during pregnancy. In addition, a physician is not required to report a pregnant patient's illegal drug use under section 261.101(b) of the Family Code. The definition of the term "individual" in section 1.07(a)(26) of the Penal Code, recently revised to include "an unborn child," does not affect the definition of the term "child" in Family Code section 261.101(b).

Opinion No. GA-0292

The Honorable Robert Duncan

Chair, Committee on State Affairs

Texas State Senate

Post Office Box 12068

Austin, Texas 78711-2068

Re: Whether section 1305.003(14) of the Texas Occupations Code exempts from state licensing requirements all persons performing electrical work for a private industrial business, even if a person is not an employee of the private industrial business (RQ-0233-GA)

S U M M A R Y

Occupations Code chapter 1305, the Texas Electrical Safety and Licensing Act, regulates electrical work in Texas. Section 1305.003(14) of the Occupations Code exempts from the Act's licensing requirements "a person" who is "employed by" a "private industrial business." The terms "person" and "private industrial business" are ambiguous and vague. The term "employed by" refers to a person who is an employee, but whether a person is an employee is a fact question that cannot be answered in the opinion process. Consequently, section 1305.003(14)'s terms do not provide sufficient clarity to answer as a matter of law the question of whether a person performing electrical work for a private industrial business, even if a person is not an employee of the private industrial business, is exempt from the Act's licensing requirements.

Opinion No. GA-0293

The Honorable Geraldine Miller

Chair, State Board of Education

1701 North Congress Avenue

Austin, Texas 78701-1494

Re: Effect of amended article VII, section5(b) of the Texas Constitution on the State Board of Education's management of the permanent school fund (RQ-0249-GA)

S U M M A R Y

Texas Constitution article VII, section 5 charges the State Board of Education with managing and investing the assets of the Permanent School Fund (PSF). Section 5(b) requires the Board to pay the expenses of managing PSF investments, including fees to external investment managers, from funds appropriated by the legislature from the PSF. The Board is not required to pay from appropriated PSF funds the indirect management costs attributable to mutual funds or other investment companies in which it invests PSF funds.

For further information, please access the website at www.oag.state.tx.us or call the Opinion Committee at (512) 463-2110.

Nancy S. Fuller

Assistant Attorney General

Office of the Attorney General

Filed: January 12, 2005